Abstract

Being a weaker stratum of society, special measures should be taken to protect women and children. It is a basic obligation of all and sundry to safeguard and uplift women and children, but in the Courts of Law, they are the least protected. When the stage of realization of the basic rights comes, the Courts treat them like chattels on one pretext or other, especially on the ground of judicial restraint. They are not given equal treatment with men; what to say about special treatment in the Courts in Pakistan. Although on paper, women and children are the most privileged persons at the end of the day, they are victims of the men-made game. Everyone has been watching it since the creation of Pakistan and will continue seeing it forever. This article will explore the fraud being played on women and children from a forensic perspective.

Key Words

Children, Forensic, Judicial Restraint, Women

Introduction

Part-I will conceptually discuss the basic constitutional and legal framework in Pakistan as to how the State and the Social work. Part-II will explore the special legal measures put in place for the protection of women and children. Part-III will show that it is just on paper and nothing, in reality, is special when it comes to being judicially realized for the weaker stratum. Part-IV will conclude the article with some recommendations for showing the path to actually do something under the affirmative action jurisdiction.




Part-I

Basic Constitutional and Legal Framework

Basic human rights are enshrined in the constitution, known as fundamental rights. As such, men and women are equal in the eyes of the law. No one can claim superiority on any pretext, either man or woman. But historically, being a male-dominated society, the constitution granted the power to the legislature to enact a law for bringing women at par with men in all walks of life. Such like act or action is called Affirmative Action in constitutional jurisprudence (Nazar Elahi v. Government of the Punjab, 2013). The court interpreted the constitutional provision and held that law could be competently passed by the legislature when some special measures are needed for the backward and suppressed persons like women and children (Fazal Jan (Mst) v. Roshan Din, 1990). 

In the democratic system of government, citizens elect their representatives who sit in parliament and provincial assemblies. As such, all the legislative power is exercised by the elected members of the citizens. In other words, the legislature is supreme in the sphere of legislation. This is called the concept of separation of powers (Hakam Khan v. Pakistan, 1992). It is a truth universally acknowledged that once a Constitution is ordained, then the polity is called a political society is popularly known as State. Thereafter, further improvement and correction can only be made under the power granted by the Constitution (Austen, 1813).  All the civilized societies exercise authority through the three organs, the legislature, the executive and the judiciary. Our constitution provided separate chapters for the mode and extent of the three powers by the respective organs of the State.

Political history tells us that the three Organs shall act in harmony to run the State. Judiciary will interpret the enacted law and execute orders passed on the basis of such law. Judiciary has to decide cases between citizens in accordance with the law enacted by the legislature. In Pakistan, the Legislature is the Parliament or a Provincial Assembly. Now, the point to explore is as to whether the legislature has fulfilled its duty under the constitution in respect of women and children and whether the judiciary is truly exercising jurisdiction and power given by law in respect of women and children.  

Women and children have been in all ages as the weaker stratum of societies. That is why there is so much concern for their rights and uplifting at the national as well as international level. At the international level, there is CEDAW (Martin et al., 2006). Under the Optional Protocol to the Convention, a Committee to Eliminate Discrimination Against Women has been established. Individuals can submit complaints either on behalf of themselves or others to the committee for any violations of the Convention (Martin et al., 2006). However, the complainant must exhaust domestic remedies. The CEDAW- Committee makes decisions on merits, and if a verdict of violation is given by the committee, the State at fault will be asked to remedy the situation within six months. The Protocol does not allow reservation (Martin et al., 2006). The problem arises when there is no domestic legislation for the enforcement of the human rights of women and children, or if any, that is not put in place effectively. In the Indian context, the judiciary criticized the legislature for not creating legislation in that area and not giving effect to international obligations (Vishaka v. Rajasthan, 1997).

National constitutions have guaranteed fundamental rights. The constitution provides in Article 25 (3) that the State is not prevented from making any special provision for the protection of women and children. Now, under this provision, the ‘State’ has been reminded to act for the betterment of women and children. So, the State is a republic. The elected legislature makes a law, and the independent judiciary adjudicate. Courts are the only legal forums to realize rights. A fair trial has constitutionally been guaranteed. Judicial system is adversarial and independent. However, the law has provided some semi-inquisitorial procedures also. 

Part-II

Special Legal Measures for Women and Children

Two Organs will be researched here: one, legislature, and two, judiciary, as both supplement each other as far as the point under discussion is concerned. It has judicially been held that the word ‘State’ in Article 25 (3) of the constitution also includes judicial functionaries and the Presiding Judges who hear and decide such like cases. The constitution thus would not prevent a court from directing the State to perform the function visualized (Fazal Jan v. Roshan Din, 1992). If a law is required, then a Court can competently direct the government to ensure the enactment of laws in conformity with the forensic order. The High Court has jurisdiction through a writ of mandamus for the enactment of laws (Gatron (Industries) Ltd v. Government of Pakistan, 1999). Parliament and a Provincial Assembly can pass a law on the items given in the respective legislative lists of the Schedule of the Constitution. It is to be kept in mind that legislature is supreme in the domain of making law. There is no hurdle in enacting a law as it needs a simple majority in the legislature to pass a law. 

One misconception must be removed while reading Article 25 (3). It does not say to discriminate in favour of women and children. It mandates that on the pretext of equality and equal treatment, the State shall not further discriminate against women and children - the already backward and discriminated class of the male-dominated society. In fact, it is a realization of the harsh truth in the mind of Pakistanis that women are being discriminated against (Syeda Sadia v. Bahauddin Zakariya University, 2012).

Courts have observed in many cases that in view of Article 25 (3), the question of discrimination against women arises almost in every case.  Therefore, if a lady apparently appears to be incapable of conducting proceedings in court herself, legal assistance shall be provided to her free of cost. The fundamental right of life assumes and means protection of the body as well as rights which include property rights (Fazal Jan v. Roshan Din, 1992). But let us see the position in practice.

The Legislative Organ of the State legislated the Family Courts Act, 1964 being now the primary legislation. The idea for it came for the first time when the government realized in the year 1955 the hardships faced by women and children that a Commission was established under the chairmanship of the former Chief Justice Mian Abdur Rashid to review the legal position in respect of divorce and related matters. It rationalized that every civil suit lasts almost for a generation. Execution of decree was being delayed by a dishonest litigant unreasonably. The recommendation was for special legislation for the appointment of special judges to be called family judges and enactment of family law (Report No. 33; see also The Family Courts Ordinance, 2002 and The Punjab Family Courts Act, 2015).

In the light of these recommendations/observations, the act was legislated whereby substantive provisions in respect of divorce and maintenance were codified.  Later on, the legislature further added ‘jactitation of marriage’ and ‘dowry’ to the act, and time period was also prescribed for decision (West Pakistan Act No. I, 1969; see also Act No. VII, 1997; Act No. X, 1996; Ordinance, 2002). As such, substantive law and almost semi-inquisitorial procedural law were enacted in this regard.

Part-III

Pious Sayings in a Piece of Paper

Constitutionally and legally, it means a lot; but actually, practically, and in practice, it means nothing in Pakistan. Just before demonstrating this premise, let us refer here to Shakespeare, “Out, out brief candle! / Life’s but a walking shadow, a poor player / That struts and frets his hour upon the stage, / And then is heard no more: it is a tale / Told by an idiot, full of sound and fury, / Signifying nothing” (Shakespeare, 2012).

Enactment and amendments therein till the year 2020 involved the Pakistan Law Commission, honourable Judges of the superior Courts, both serving and retired, lawyers, Bar Councils, Judges of subordinate judiciary and NGOs. Governments of different political parties and even non-elected regimes also came; but nothing practically changed, as if the law remained the same forever: “What are you shouting about…. What new laws and rights are you shouting about … [;] the laws are the same old ones…” (Manto, 1977; see also Faiz, 1996). Everything in Pakistan is just a thing for the sake of a thing. Let us demonstrate that the law and the amendments therein with the good offices of such high personalities are just pious sayings on a piece of paper only. Before embarking on the navigation, we cannot hesitate here right now except to quote Shakespeare once more: “What a piece of work is a man! How noble in reason! How infinite in faculty! In form, in moving, how express and admirable! In action, how like an angel! In apprehension, how like a god! The beauty of the world! The paragon of animals!” (Shakespeare, 2012). But alas, this paragon failed in the domain of women and children; that is why it has been said, “And yet to me what is this quintessence of dust?”

The agony of women and children has never been realized in its true spirit by all and sundry throughout ages. A child cried: O! why does the wind blows upon me so wild? Is it because I’m nobody child? (Cohen, 1960).

Here is a paradox. On the one hand, even children and women are practically deprived of their rights, while on the other hand, the judiciary is our last hope (Mansoor, 2006). Let us explore and locate the problem. What we were supposed to do and what we did!  We could not protect women and our children. Let us come out of Shelley dream, which once sung, “I dreamed that, as I wandered, by the way, / Bare winter suddenly was changed to spring” (Cohen, 1960). Indecision is no solution to the problem. It is action and action alone. Let us not only act but let us act promptly and honestly. Let us put questions and find their answers. 

The problem lies in the harsh fact that even in the year 2020, a Civil Judge, nay, a Civil Judge class III, hears a family case. It takes years to conclude. Generally, an appeal takes years in the District Court. It is a practice that the decree remains suspended till the decision of the appeal, that too, usually without any security. And then further years are spent to execute the decree. Sometimes, further Petition or appeal is filed, which also takes years. Everybody is aware of this sad State of affairs but does nothing as he is happy in the status quo. 

Apparently, the legislature did a great job by legislating the law and seems justified to slumber; but on closer look, it is fallacious to think so. Nobody questions who is Legislature in Pakistan. It is the same as the executive. A single person of the same political party is a Member of the National Assembly or Senate, the legislator, as well as a Minister, the executive. The same is the position in the Provinces. Now, if this much is clear, let us see the pious sayings in the form of the law having been legislated by the same person in the capacity of a Legislator; but he will never execute it in the capacity of being the executive himself.

Section 2 (1) (b) of the Act mandates constitution of the family court to be presided over by specially trained and appointed judges. The Provincial Government is under obligation to establish family courts for expeditious decisions of family disputes (Section 3 (1)). This legislative language is too refined and mandatory. But since the year 1964 till 2020, it is simply on a piece of paper. See the modus operendi and the machinations being played by the men in power, which we are going to demonstrate below.

The word ‘constitute’ means to make up, compose, to establish formally, to appoint to an office: designate. Etymologically, it is from the Latin word ‘constitute, which means to cause to stand, sit, or fix (Parton, 1979, pp. 155). The word ‘appoint’ means to name for an office or position, to fix or set by the authority. Etymologically, it is from Old French ‘a point’, which means to bring to a point. The word ‘appointee’ means a person who is appointed to an office or position. The word ‘appointive’ means pertaining to or filled by appointment: an appointive office. The word ‘appointment’ means the act of appointing; the office or position to which a person has been appointed (Parton, 1979, pp. 13). The word ‘establish’ means to found or create (Parton, 1979, pp. 246).

Simply put, a family court or a family judge is a separate thing or person to be seen for the first time after the constitution and appointment. Otherwise, logically, it does not make sense to see the same old civil judges as family judges as it is ludicrous and is a fraud on the Report of the Commission of the year 1955. It is also unconstitutional to empower the civil judges with the power of family judges as the statute mandates the appointment of family judges. The High Court cannot confer or give jurisdiction to a civil judge, which the statute gives only to a family judge. It is to be remembered that jurisdiction can only be conferred by the constitution, or by law, or under law, as is the clear mandate of Article 175 (2) (Constitution). A thing mandated or prescribed can only be done in that particular way under the concept of the Rule of Law. However, it is pointed out that although jurisdiction can be given under statutory rules if competently framed, a court or office cannot be created without primary legislation. So, all the powers and jurisdiction being exercised by the civil judges throughout Pakistan as family judges are unconstitutional. It is time to ponder and correct the mistake by establishing family courts and appointing family judges as the time for such appointment was six months, as was given in the Act of 1964. (It is strange to hear about the appointment of civil judge cum magistrate as no person can be appointed for more than one post under the law of Pakistan!)

Now, the question is that who will establish Family Courts for the first time and appoint the family Judges. 

It is the executive, the provincial government, to establish the Family Courts, and appoint the Family Judges, but it will never be done because the Ruler does not want people happy and prosperous. It is what life is! We got our homeland, but we are striving to achieve rights.  We, the Pakistanis, love our land, but we are being looked down upon. No court was established, or a family judge was appointed under the Act of 1964, but a new law was enacted for the establishment of a new commission which is discussed below. 

In the year 2012, the government passed a law known as the National Commission on the Status of Women Act, 2012. See the just pious slogans. Its objective is to promote the status of women. Its preamble also gave mention to CEDAW and other International Conventions in respect of women.  The Commission is to examine and review all policies, programs and other measures taken by the government for women's welfare and gender equality, and then give suggestions. It seems as if the government is not aware of the problems of women. First Commission was constituted in the year 1955, and the Act of 1964 was passed in pursuance to the same, but no result came out as far as the fate of women is concerned. And then another Commission in the year 2012 for evaluating the performance of the government on a role which it did not play at all! What is a piece of work, man?

That is why nothing happens: “Once a victim, always a victim: that’s the law” (Hardy, 198). The Sun Also Rises, Man comes and goes, the earth remains forever, and this is what life is (Hemingway, 1926). 

Before critically analyzing the role of the judiciary, let us think as to what is maintenance even if delivered timely at all. It is food, clothes, shelter and such like bare necessities to sustain body and soul together. (Meek et al., 1982). In case of dispute between spouses, the only remedy is to file suit in court for obtaining maintenance for the woman and children. The same is the way for resolving other matrimonial disputes. Now see the procedure for getting judicial relief and the actual practice discussed below.

Section 9 of the Act provides that the plaintiff and the defendant shall appear before the Family Court, and the defendant shall file his written statement. Two things have been envisioned by this provision of the primary legislation—one, the appearance of the parties in person, and two, the filing of the written statement. The purpose is to observe the parties and to get a version of the dispute from the defendant promptly so that to avoid tutored and after-thought defence. In practice, on the first day, lawyer’s power of attorney is filed in the absence of the defendant, that too with the clerk (reader) of the court, and then after so many dates, a written statement is filed through the lawyer, again in the absence of the defendant, and with the reader of the court. The judge is basically a civil judge is by default busy in civil suits/ matters. He has neither special training for family matters nor such an interest. It has never been realized to see the aptitude and approach of the civil judge before assigning his family matters.  Each civil judge from class 3 to class 1 is a family judge by default. Being a civil judge class 3, he has very limited jurisdiction in civil matters because of lack of experience, but while performing the duty of a family judge, he has unlimited jurisdiction; nobody cares! Similarly, Section 9 (4) of the Act provides that a copy of the written statement shall be given to the plaintiff. It is meant for the purpose of putting on notice the other side about the stand of the defendant so that to facilitate settlement between the spouses expeditiously. In practice, it is never done because the civil judge goes by the civil practice where a copy of the written statement is by practice not provided to the plaintiff. Section 10 of the Act provides that the court shall examine the plaint, the written statement and shall hear the parties. It is provided that the court shall attempt to effect a compromise or reconciliation between the parties. But in practice, just a few minutes are given to this aspect as civil judges are not specially trained in this regard.  Section 11 of the Act is very crucial, which provides that the Family Court shall examine the witnesses produced by the parties in such order as it [the court] deems fit. See tense of the section being the indefinite tense. It confers inquisitorial jurisdiction on the Family Court to examine, i.e., ask questions directly from the witnesses. The lawyers are not permitted to examine and cross-examine the witnesses as of right. They may suggest a particular question to the family judge to be asked by the judge or seek permission from the judge to ask themselves from the witness, but the lawyers are not given a direct right to do so. But being a civil judge, he is accustomed to the role of the lawyers as is envisaged by Order 18 CPC. The same style of recording evidence is conducted by lawyers in ordinary civil suits. Nay, the actual situation is worse than civil procedure. In civil procedure, the statement of the witness is recorded as chief and at the same time cross-examined by the opposite lawyer. But in family matters, an affidavit of the witness is first filed in court, and then on subsequent dates, cross-examination is conducted. No thought has ever been given as to why CPC and the Qanun-e-Shahadat Order, 1984 (Evidence Law) have been excluded by section 17 of the act. The judge being a Civil Judge, is not ready to follow an expeditious process showing himself reasonable and bound by judicial restraint. This approach is not correct as family law prescribe inquisitorial jurisdiction. Let us further see the puzzling process of execution of a family decree.

The substantive and procedural aspects are supplemented by the Rules. Rule 6 of the Rules gives territorial jurisdiction for filing suit for divorce and maintenance at the place of temporary residence of the woman as the court enunciated the principle holding that temporary residence of an estranged wife is ‘ordinary’ residence (Mst. Irshad Mai v. Additional District Judge, 1997). Otherwise, homeless women can do nothing except stay in an abusive relationship because they had nowhere to go permanently.

The delegated legislation in the form of the Rules and the judicial interpretation is too reasonable, but how and who will execute the maintenance decree against the man who is outside the territorial jurisdiction of the court. Such a decree is executed on the pattern of Order 21 CPC, and a judgement-debtor outside the District of the Executing Court cannot be ordered to be arrested. So, since the years 1964 till 2020, nobody cares to remedy the grievance of women and children to make law and judicial mechanism for execution of the decree of maintenance of minors and wife promptly. 

It is the duty of the sub-ordinate Courts to follow the law as declared by the superior Courts (Articles 189 and 201). It is the right approach to impose huge costs on the man who has dragged a widow in frivolous litigation (Muhammad Ilyas v. Mumtaz Begum 2020), and the sub-ordinate Courts must follow this principle so that to prevent unscrupulous men from fighting in courts endlessly. Women and children need special treatment being undeveloped strata of society in almost all walks of life (Attiyya Bibi Khan v. Federation of Pakistan, 2001). 

It was judicially held that State institutions would have to give special consideration to women while dealing with their issues (Sadia Syeda v. Bahauddin Zakariya University etc., 2011). The position of women is admittedly unequal to men. There are barriers everywhere in the way of removal of such unequal status: “Today, women at all income levels are still facing barriers to advancement, and in some ways, these challenges are harder than ever because there are some people who think that discrimination against women no longer exists. Sadly, that’s just not true” (Diane Rosenfeld, 2007, p 4).

There is no denial of the fact that females have a long way to travel to come to the same pedestal as men are standing on. They are backwards educationally, although having fifty per cent population in Pakistan. The Charter of the United Nations sets out as one of its goals to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women. Relevant authority should be guided by the standard of reasonableness as highlighted by the superior Courts. Any discretionary power available to any authority needs to be exercised in favour of women on the basis of rational standards (Javed Zamir Ahmad v.  The Secretary Revenue Division, 2009). It is strange to note that the executive applies positive law to the disadvantage of females, which the legislature has made for their benefit. For example, there is a special quota in certain services for females, but the executive, on the pretext of the quota, prohibited female candidates from the open competition with males. In a court case, it was declared that relegating female candidates to a women quota and not appointing them on open merit where they meet the criteria is discriminatory (Government of the Punjab v. Qanoot Fatima, 2018).

Political polity has many functions to perform. People became strong and great because of the path shown by the Rulers through legislation and implemented in its true spirit.  The ultimate purpose of electing representatives in political society is to give legitimacy for the exercise of power to serve the citizens. After getting legitimacy through a vote, they must cater to the need of different classes of persons. As such, the legislature has to make special laws, and the administrator has to apply the same on the basis of rational selection and need (Dr Shahnawaz Wajid v. Federation of Pakistan, 2012). It is important to note that under our constitutional dispensation of affairs of the State, fundamental rights will always remain a check on the power of the State, both legislative and executive. Women cannot be deprived of the fundamental right enshrined in Article 25(3) on any pretext, even on the apparent ground of the equality of men and women. Consequently, the legislature has to legislate special provisions for women, and the executive cannot refuse to extend the benefit of the same to women (Miss Rabia Khan v. Province of Sindh, 2012). Judiciary has to play a crucial role in this arena as it is our last hope.

There is malpractice that creates a lot of problems and difficulties. A family decree is to be drawn under section 13 of the act. It provides that all the paid interim payments shall be calculated and be written in the decree so that to avoid problems at the time of execution. It is further provided that it shall be written in the family decree that payment shall be made in the specified time period, which shall not be more than one month. Even instalments can also be made in the decree sheet at the time of passing the decree if the Family Court considers such instalments appropriate so that to facilitate recovery expeditiously and timely. It simply means that a family decree automatically stands converted into an execution proceeding at the time of passing, i.e., even before it has attained the status of judgment and decree. There is no need to again summoning the judgment-debtor through summons, which consumes a lot of time, to pay the amount. That is why Rule 20 of the Rules says that when the amount is deposited, the court shall issue a notice to the decree-holder to collect the same from the court, and the court shall release the amount within four days to the decree-holder. A comparative analogy may be drawn from the banking recovery suits wherein also the decree of the banking court stands converted into execution proceedings, and no separate execution petition is required to be filed. In practice, too, banking courts start execution proceedings automatically at the time of passing the decree. A further analogy for such power can safely be drawn from Order 20 of the CPC: A Civil Court, on the oral request of the plaintiff, at the time of passing the decree, can order for the arrest of the judgment-debtor if the decree is for an amount. But neither legislature nor judiciary really pays attention to solve problems of the already suppressed class, women and children.

Part-IV

Conclusion and Recommendations

The legislature has made law, but the executive has miserably failed to provide an effective mechanism for its implementation. Now here is the conclusion of the above discussion, and that is like the role of Beckett (1953)’s characters - the unending waiting. (Withanage, 2011). Nobody on earth can deny the truth that human being is the progeny of woman; but in practice, when the question of the betterment of women comes, all our energies are wasted on a choice between waiting for one “better” thing after another. Both past and future are illusions and seen under this aspect; we begin to taste the notion of eternity (Chadwick, 1960). In reality, it has come to light that we have wasted “half a century” by repeating the action of waiting, and it seems that there is nothing much left to try except waiting. We simply insist, in the meantime, to converse calmly since we are incapable of keeping silent. Like the characters, to distract the silence and break the discomfort of silence, we tell stories, think, sing, dance, eat, fall asleep, converse because “It'll pass the time”’ (Chadwick,1960). Literature is the imitation of life. It is right time to remember Thomas Hardy, the great man-of-letters, who aptly signified that most of her misery had been generated by her conventional aspect (Hardy, 1981). There is no serious and genuine effort on the part of the executive. Ruler in the capacity of legislator enacts law but in the capacity of executive, becomes indifferent. Judiciary has its own excuses. Nothing has changed since the British Raj except faces. THINK! 

Recommendations: Further legislation is needed to create a post of Family District Judge, preferably female, in each district who may be elevated as Judge of the High Court.  A Family Division will be established in the High Court. Family Judges will be immediately appointed under the already available legislation in the form of the act. An aptitude test of such candidates will be strictly made the main criteria for appointment as a family judge. Besides training such family judges in the Judicial Academies, they will be sent to the National Universities to learn the science and art of negotiation. Human psychology in general and social psychology, in particular, will be made part of their training. Special credit and motivation will be provided to those judges who affect more reconciliations between spouses. Panels of negotiators are constituted, and sufficient opportunity spreading on some days will be allotted to the process of reconciliations, both pre and post-trial. A Special Bench on the pattern of Green Bench will be assigned in each High Court to resolve family matters involving women and children. It will be made incumbent through 

Legislation as well as a judicial mechanism to take surety from the man on the pattern of Order 7 CPC suit at the trial stage. Each Union Council and each Head Master of government primary schools must report any abuse of a woman to the District Judge who will be made competent to take action judicially of the matter. Below the poverty line, women will be granted financial support from the Zakat Fund on the recommendation of the District Judge concerned. Priority preference needs to be given by all three Organs to the problems of women and children.

Legislation is further needed to equalize a family decree with cash to be backed by a government guarantee on the pattern of profit bearing bonds.  Annual profit will also be provided in the family decree for late payment. A judgment-debtor, instead of confining in jail for not satisfying decree, be engaged in some work, emolument of which will be paid to the decree-holder directly under the order of the court. It will be made a judicial failure affecting the career of the sub-ordinate judge for unnecessary adjournments. Strict compliance with the statutory period of six months for completing the trial must be made. Recourse must be made to the provisions of supervision as contained in Article 203 and section 14 (Constitution of Pakistan, 1973; see also Civil Courts Ordinance, 1962). And last but not least, an office will be assigned to encash family decrees and then recover the amount with profit from the judgment-debtor.  

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